Dissenting Opinion.
Roby, P. J.The jury in this case returned a general verdict for the plaintiff, together with answers to certain interrogatories which had been propounded to them. The examination as to the merits of this appeal made by the court, as shown by the opinion heretofore filed, does not include more than a consideration of answers to interrogatories, and judgment for the defendant notwithstanding the general verdict was directed thereon. With.this disposition I am not able to agree. The process followed, as disclosed by the opinion, is subversive of well-established and firmly-settled principles of law which are binding upon this court.
The questions involved are stated by the learned writer of the opinion as follows: (1) “Do the special facts found show that appellant was guilty of the negligence charged ?” (2) “Do'they show that appellant’s decedent was free from negligence ?”
If a special verdict were under consideration, no general verdict having been returned, then the first proposition, thus stated, would be correct. If this court were acting as a jury, unfettered in law' as well as in fact by any previous proceeding, the proposition would indicate one question for its decision. The jury stage has been passed, and the general verdict in his favor relieves appellee from the necessity *303of showing by the answers to interrogatories that appellant was guilty of the negligence charged. The following is a very fair statement of the law: “A general verdict is the solemn declaration of the, jury that upon all the facts proved in the case the plaintiff’s injury was the direct and proximate result of the defendant’s negligence charged in the complaint, and that the plaintiff was free from fault contributing thereto; and in support of the conclusion of the jury it has been often decided by this court that a general verdict will not be defeated by isolated facts disclosed by answers to interrogatories, unless such facts are shown to be so repugnant and contradictory to the general verdict that both can not be true under any conceivable state of facts provable under the issues.” Indiana R. Co. v. Maurer, 160 Ind. 25; Midland Steel Co. v. Daugherty, 26 Ind. App. 272; Gunther v. Fohey, 26 Ind. App. 93. This well-established rule is overridden, and the general verdict and its presumptions ignored as a first and necessary step to the result which has heretofore been announced.
The second proposition stated is of the same quality as the first. The learned writer of the opinion marked out the task of determining whether the freedom from fault of the plaintiff was affirmatively shown, by the findings; again forgetting the effect of the general verdict and ignoring the rule which has been stated and reiterated by this court a great many times. If the statement of the second point for decision is correct, then, also, §359a Burns 1901, declaring contributory negligence to be a matter of defense, is judicially and by implication repealed, since the burden is, in the opinion, placed upon the plaintiff. The issue upon this branch of the case, correctly stated, is, do the facts exhibited by the answers show that appellant’s decedent was negligent? — not free from negligence. Having started upon a basis as incorrect as ingenuity can devise, an enumeration of “facts upon which the determination of the. appeal depends” is set forth in the main opinion.
*304It is there said that there are many facts found that are wholly unessential and immaterial to the determination of the legal question involved. The decision is made to turn upon the assertion that “the decedent could have seen the approaching ear, if he had looked,” as he approached the track, except for a distance of ten feet, and have “heard the noise of the car for a distance of 100 feet, if he had listened.”
In addition to the facts enumerated in the main opinion are those which “might have been proved under the issue,” and also a number found by the jury, which, in the opinion of the writer, are not “immaterial” and “nonessential,” and for the elimination of which no warrant of law exists. They are readily discoverable from a comparison of the following summary of the facts stated in the answers to interrogatories with the statement of the main opinion. Decedent was fifty-five years of age at the time of the accident complained of, which was July 26, 1901. He had good eyesight, hearing, health, and also good use of his arms and legs. He had no impairment of mind or faculty, and was of average strength and intelligence. He was a painter, accustomed to earn $32 a month. He was an experienced bicycle rider; had been riding one about a year. He knew how to manage the bicycle, and within what distance he could stop and turn. He could stop at the rate he was riding within ten feet. He could turn so as to change his course within eight feet. He could have alighted after he came into the roadway of Virginia avenue, and before he reached the railway tracks. There was nothing to prevent his so doing, and lie was not prevented from so doing. He was prevented by wagons from turning aside in the roadway before he reached the car track. He could not, after coming into the roadway, have turned out of the way of the car. He was prevented from so doing. He could not have stopped after he came into the roadway before reach*305ing the ear track and remained out of the way of the car. lie was prevented from so doing by wagons.
The accident occurred on Virginia avenue, in Indianapolis, at the intersection of Louisiana and New Jersey streets. Virginia avenue ran northwest and southeast; was fifty feet wide from curb to curb, with sidewalks twenty feet wide on each side,' and was paved. There were two car tracks laid thereon, each four feet eight inches in width, and laid so as to be equally distant from the center of the street. They were five feet apart. Cars propelled by electricity ran over the street frequently, those going southeast using the west track. New Jersey and Louisiana streets were each ninety feet wide. Beginning at the north side of the open space formed by the intersection of the three streets named there is an up grade of five feet in 500 feet, extending 100 feet northwest, approaching a viaduct. The distance from the west property line of the avenue to the west rail at the place of the accident was thirty-seven and six-tenths- feet. Decedent was struck by a car going south on the west track. The car was about fifteen feet high, between seven and eight feet wide, and was painted yellow. It was running at the time of the collision about twenty-two miles an hour. Its average speed, while it ran the last 500 feet before striking him, was twenty miles an hour. If he had listened for it he could have heard the car 100 feet away. The accident occurred in the daytime, at 6 o’clock. The weather was dry and clear. Decedent was going home from work. He had lived in Indianapolis three years. This street intersection was his usual place of crossing the car tracks on his way to and from Work. He was familiar with the situation and the operation of cars there. He came from the south on New Jersey street, about its center, until twenty feet from the west rail, at about six miles an hour, then turned east to cross the tracks, riding at about eight miles an hour. He increased his *306speed when, about ten feet from the track on account of the wagons. The front wheel of his bicycle Was three feet over the rail when he was struck. The car was ten feet away when he reached the west rail. Pie could not have seen the car at all times after he passed the west line of Virginia avenue. Pie could have seen it after he passed said West line, and before he turned to cross the tracks. There were two vehicles approaching from the north, one driving after the other. Decedent crossed ten feet ahead of the horses in front of the vehicles, which were driven six or seven feet west of the track. The vehicles prevented him from seeing the car while he was riding ten feet. There w'as nothing to prevent his seeing the car after he passed in front of the -vehicles. The emergency caused by the wagons prevented his waiting to cross until the car passed. Pie looked toward the viaduct when he was fifteen feet from the track; did not see the car that struck him; did not try to get in front of it by increasing his speed. Pie did not voluntarily go on the track with knowledge of the car’s approach. Pie was prevented from seeing it by wagons. He did not know that the car Was rapidly approaching when he went on the track. The car was not in plain view from the time he entered Virginia avenue. He was fifteen feet from the track when his view was obscured by the vehicles. He was five feet from the track when they ceased to interfere with his view. He knew of the vehicles when he crossed in front of them, but did not know' to what extent they would interfere with his view. The car was 250 feet distant when he entered upon the avenue. He could then see 500 feet north. It was 120 feet distant when he was at the curb. He rode at the average speed of six and one-half miles an hour. The vehicles referred to were two-horse farm wagons, the front one having an unloaded hay frame above the wheels. The highest part of the wagons was six and one-half feet above the ground. They were being driven about four miles an hour. Hone *307of the car was visible to, decedent while the wagon was between him and the car.
These answers, as returned by the jury, among' other things disclose that deced.ent had neither opportunity nor time to stop or turn aside after he discovered, or could have discovered, that the car was in dangerous proximity. It is not shown that he knew or that he should have known that the car approaching was being run at the rate of twenty-two miles an hour, and it must therefore be presumed -that he did not know such fact, and,, indeed, it is so found in terms. It is true that there is a' finding to the effect that he was familiar with the streets and the operation of the cars at that point, but it is not shown that appellant habitually ran its cars at the dangerous rate of speed of twenty-two miles an hour.
It will be presumed in the absence of contrary proof that appellant -habitually ran its cars .at a safe rate of speed at that point, and with due regard to the lives and limbs of its patrons and the public, and that decedent therefore acted upon the assumption that this particular car would be so run. His familiarity with the place and the manner in which appellant’s cars were operated became, therefore, a strong circumstance tending to relieve him from any imputation of negligence. The jury may have considered the fact, as this court has evidently not done, that had the car been running at such a rate as he had the right to anticipate —say at six miles an hour — the decedent could not have been in any possible danger through attempting to proceed on his homeward journey. Indeed, had its speed been increased to ten or fifteen or eighteen miles an hour, no accident would have occurred to him; and had the car been under control at the crossing, as it was the duty of the appellant and its motorman to have it, and as he had a right to presume it was, there would have been no danger. The duty of the motorman, in the light of which the decedent acted, is clearly stated by the Supreme Court as fol*308lows: “And, although a street car or other vehicle moving along the street has a right, also, to pass over the crossing, yet, as has been well said, it behooves the motorman of the electric car, or the driver of any other vehicle, to be vigilant in approaching a cross-walk, so as to avoid injury to a foot passenger, even though the latter may be careless in hurrying over. In a city, the people must hasten to their business, and can not wait until all pass by who wish to use the roadway over which they must cross.” Evansville St. R. Co. v. Gentry, 147 Ind. 408, 37 L. R. A. 378, 62 Am. St. 421.
It appears that the car projected over the track sixteen and one-half inches, so that, when the decedent’s view was no 'longer obstructed by the wagons he was between four feet and eight inches and five feet and eight inches, or, as has been found by the jury, five feet, from the danger point. This was further reduced by the distance that the forward wheel of the bicycle was in advance of the rider. It thus affirmatively appears that no negligence is shown by the answers to interrogatories to have existed upon the part of the decedent, except as it is deduced by this court from the single fact that when the car was from two hundred fifty to one hundred twenty feet distant he might have seen and heard it had he looked and listened. In other words, it is held, as a matter of law, that one attempting to cross a public street in the city of Indianapolis, in front of an electric car from two hundred fifty to one hundred twenty feet distant, is guilty of contributory negligence. It is undoubtedly true that circumstances might exist which would require a conclusion of that sort, but in the case at bar no such circumstances are shown or hinted at by. the answers to interrogatories, and their existence is negatived, not only by the general verdict, but by the specific facts returned.
Among other facts, not considered in the majority opinion, the jury found, in answer to interrogatories, that the *309decedent, when he reached the curb line of the avenue, could neither have stopped nor turned aside. This is the finding of a fact. It is inconsistent with the fact that he could have stopped or turned aside within the distance specified by other interrogatories, and deprives the finding that he could have seen the car when it was 240 feet away of any significance. It may be that this answer was not supported by evidence, but that is a question with which we have no concern 'in considering a motion for judgment upon the answers to interrogatories. A party who relies upon facts thus established must take them all, and neither he nor the court may override or ignore them in part.
In the recent case of Baltimore, etc., R. Co. v. Cavanaugh (Ind. App.), 71 N. E. 239, this court said: “Said instructions twenty and twenty-one are open to the objection that they, in effect, hold appellee’s failure to use the best judgment and to do the best thing, that, under the circumstances, could have been done, to be negligence. They fix too high a standard of diligence. The rule requires one to act as an ordinarily prudent man would, similarly situated.” This is the standard of conduct prescribed by right reason and declared by law. By it the conduct of the decedent should be judged. Without elaboration, and with the utmost deference to my associates, I respectfully submit that the mandate directing judgment notwithstanding the general verdict is based upon-a ruisapprehension of the facts involved, and a misunderstanding of the applicable law.